Supreme Court of Justice, proc. 03P148, 20.02.2003

TRÁFICO DE ESTUPEFACIENTES | PESSOAS DE ETNIA CIGANA | ACAMPAMENTO CIGANO | ESTIGMA | STATUS | MARGINALIDADE

 

 

Supreme Court of Justice, proc. 03P148, 20.02.2003

 

JURISDICTION: Criminal

SUBJECT: Drug trafficking

RAPPORTEUR: Oliveira Guimarães

RULING: Partial grant of the appeal by defendant A., with a reduction of the prison sentence to five years and six months, and full grant of the appeal by defendant B., with suspension of the execution of the prison sentence for the period of two years, under probation.

DOMESTIC LAW:

Criminal Code (Articles 40, 50, 53, 70, 71)

Code of Criminal Procedure [Articles 410(2), 432]

Decree-Law No. 15/93, of 22 January 1993 (Articles 21, 24, 25, 26)

Decree-Law No. 430/83, of 13 December 1983 (Article 24)

Supreme Court judgment, proc. 50/00, 10.05.2000

Supreme Court judgment, proc. 362/97, 11.06.1997

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Social circumstances; personal circumstances; encampment of individuals of Roma ethnicity; Roma encampment; minimum social income; peaceful person; social scourge; social fabric; the agent’s reintegration into society; personal profile; family context; life course; personal and social conditions; future prospects; imprecisely ascertained personality; persons of Roma ethnicity; stigma; status; marginality; boon

COMMENTS:

1. This judgment reviews the measure of the penalties imposed on two women of Roma ethnicity, convicted in the first instance for drug trafficking offenses. It is interesting mainly for the Court’s comments on the difficulties faced in the follow-up of persons of Roma ethnicity by the social reintegration services, including the use of terms such as stigma, status and marginality. The Court concludes that those difficulties cannot be used as a reason not to apply the general law, i.e., the provision in the Criminal Code which, at the time, authorised the suspension of the execution of prison sentences of no more than three years [Article 50(1), which, since 2007, allows the suspension of the execution for prison sentences of no more than five years].

 

2. The lower court had convicted defendant A. for a drug trafficking offense on a prison sentence of seven years, and defendant B. for a minor drug trafficking offense on a prison sentence of one year and six months. On appeal, defendant A. alleged that the lower court had not paid due regard to her social and personal circumstances, nor to the fact that she had been cooperative, and asked for a reduction of the penalty to the legal minimum established for the crime, i.e., four years of imprisonment. Defendant B. alleged that the lower court had breached Articles 70 and 50 of the Criminal Code, since it had opted for a penalty involving deprivation of liberty and had not suspended the execution of the prison sentence, respectively, and asked for the suspension of the prison sentence that had been applied to her.

 

3. The Court partially granted defendant A’s appeal, lowering the prison sentence to five years and six months, and granted defendant B’s appeal in full, suspending the execution of her prison sentence for the period of two years, subject to probation under terms to be determined by the social reintegration services, with possible acceptance of the Court’s suggestion that the services endeavoured to “find her a professional occupation or a compatible employment”. The Court lowered the prison sentence applied to defendant A. even though it held that her personal profile was “far from being favourable or even barely positive”. The Court explained the decision with the argument that “a less severe penalty could reflect positively on the defendant’s future behaviour after leaving prison, if she wanted (and the possibility that she might want it should not be a priori rejected) to live up to the boon of a reduction”, and that the penalty set by the lower court was “somewhat excessive”. The suspension of the execution of defendant B.’s prison sentence was granted because the objective requirements set by Article 50(1) of the Criminal Code were met and because, in the Court’s view, the little information available on the social and personal profile of this defendant required it to “take the risk of a favourable prognosis” to conclude that the mere reproach of the fact and the threat of prison would adequately and sufficiently serve the punishment purposes.

 

4. . It is interesting to note that the Court is critical of the fact that the lower court did not make an effort to scrutinize the life course of defendant B., to enquire into the reasons why she did not have a professional occupation, in knowing her “family context”, her “present personal and social conditions and her future prospects”. The facts established by the lower court indicate only that she was defendant A.’s daughter in law, that she was young (23 years old), that she did not have a criminal record, and that she did not have a professional activity. It does not seem that Social Reports were produced for any of the defendants. With regard to defendant A., the facts established by the lower court indicate that she lived with a man with whom she had several children and with a 12 years-old daughter under her care, that her family only earned the minimum social income, that she was regarded as a peaceful person, that she had no professional activity and that she had previously been convicted for a drug trafficking offense in a prison sentence of five years and six months. As noted earlier, the Court held that these factors – together with the seriousness of the offense, the type and quantity of the drug at stake – were “far from being favourable or even barely positive”. The defendants’ ethnic origin is not explicitly mentioned in the list of established facts, which only references that the sale of heroin had taken place at an “encampment of persons of Roma ethnicity”. The Court’s summary of the allegations submitted by defendant A. does not allow us to know for certain whether she invoked her Roma ethnicity as part of her social and personal circumstances. In any case, the Court makes no mention to the Roma ethnicity when assessing defendant A.’s profile. On the other hand, when the Court justifies the favourable prognosis that it is willing to risk with regard to defendant B., it clearly situates the defendant as a person of Roma ethnicity, balancing the predictable difficulties in ensuring her follow-up by the social reintegration services (due to that ethnicity) against the possible benefits in terms of correcting her marginality.

 

5. Even though the Court concludes by affirming the need to ensure the equal application of the criminal law “to all and every citizen”, it uses some problematic generalisations about persons of Roma ethnicity, which cannot go unnoticed. The most relevant passage in this regard is the following: “And even if it is well known (or acknowledged) that the follow up, by Social Reintegration, of persons of Roma ethnicity (and this is not a stigma but a status) is sometimes difficult and problematic, it should not serve as a reason or argument to dismiss the principles that we mentioned or the legitimacy of their application, as well as the widening of its functioning, to all and every citizen, since they are precisely aimed at correcting the marginality”. In our view, it would have been enough to invoke the equality principle to justify the application to defendant B of the principles at stake (i.e., counterproductive effects of short prison sentences and replacement of prison sentences as a rule). It is not entirely clear why the Court deemed it necessary to add the mention to the correction of marginality, in particular when combined with the adverb “precisely”, which suggests that what is at stake is more the fight against (Roma) marginality than the equal application of the criminal law to which they, as any citizen, are entitled to. We are also not persuaded that the Court needed to point out that the difficulties in social reintegration of Roma persons are common knowledge or widely acknowledged. In any case, if the Court is going to make such a broad statement, it would have been preferable to include references to (academic and/or official) studies to lend them some support. Furthermore, it is not entirely clear why the Court opened a parenthesis pointing out that the Roma ethnicity is not a stigma, but a status, nor is it clear what the Court exactly means by the use of the two terms. Lastly, it should be noted that the Court makes repeated use of the word “boon” – the “boon of a substitute penalty”, the “boon of a reduction” – to refer to the treatment granted to the requests made by both defendants. What is at stake is the equal application of the general law, but the use of the term “boon” suggests a condescending attitude on the Court’s part and conveys the idea that the Court is doing the defendants a favour, which is misleading.

Patrícia Jerónimo

Nicole Friedrich

 

Cite as: JERÓNIMO, Patrícia, and FRIEDRICH, Nicole, “[Annotation to the judgment of] Supreme Court of Justice, proc. 03P148, 20.02.2003”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

 

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